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Why Elena Kagan Was Right to Boot Military Recruiters From Harvard Law

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This week, as they question Supreme Court nominee Elena Kagan about her views of the Constitution, Senate Judiciary Committee Republicans will focus on Kagan's outspoken opposition to allowing military recruiters on campus when she was dean of Harvard Law School from 2003-2009.

"This policy at Harvard about not allowing military recruiters to come to the law school is going to be problematic for most Americans," Sen. Lindsey Graham, a South Carolina Republican on the committee predicted yesterday. "She's going to have to explain that."

One would assume Kagan is prepared to do so, as this question is part of a larger conversation that has been taking place at the front lines of the nation's culture wars for more than two decades. On one side are gay advocacy groups, the faculty at many elite U.S. universities, and the dominant (and liberal) wing of the Democratic Party. Arrayed in the other camp are the nation's military establishment, social conservatives, and most of the Republican Party.

As currently constructed, the argument against an official military presence on campus is presented this way: Military recruiters, let alone ROTC programs, have no place in a university setting because the U.S. armed forces are essentially closed to homosexuals -- and on most American college campuses any form of discrimination against gays or lesbians is strictly prohibited.

The counter-argument is equally straightforward: If university administrators, students, and faculty are so politically correct that they can't find room on their campus for the men and women who are willing to fight and die to protect this country then that university shouldn't receive a nickel in taxpayers' money.

With Democrats in firm control of the Senate, this issue alone is unlikely to derail Kagan's path to confirmation for a lifetime seat on the high court. But should it?

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Lindsey Graham's suggestion that a majority of Americans would side with conservatives regarding both military recruiters and ROTC on campus is almost certainly correct. There are several explanations for this, aside from the common-sense view that Americans privileged with the best education money can buy shouldn't be exempt from defending their country.

There are other reasons, too: For one, the United States military itself does not set the laws for determining who is fit to wear the uniform. That is done by Congress and the president. The current policy, referred to as "Don't Ask, Don't Tell," was a compromise forged in the Clinton administration when both houses of Congress and the executive branch were in Democratic hands.

Second, the current commander-in-chief has already announced his intentions to do away with the Clinton-era compromise that liberals now find so unsatisfactory – a policy implemented by the president Kagan served in the White House. And the top brass has agreed to support him.

Third, the justification used by elite universities such as Harvard to ban ROTC and military recruiters in the first place had nothing whatsoever to do with gay rights – and everything to do with faculty and student radicalism during the Vietnam War. Conservative critics assert, with some justification, that the anti-gay policy is a fig-leaf and that historically the true issue at play was left-wing hostility to the U.S. armed services.

That hostility, or at least a residual form of it, is still felt by a swatch of aging Sixties radicals and their progeny. Increasingly, however, students in the Age of Terror are questioning their elders' attitudes. A poll at Columbia showed students narrowly favoring the school's ROTC ban; at Harvard, a survey was nearly 2-1 in favor of lifting it. And last year, a Harvard junior named Mark Alan Isaacson nicely summed up for Politics Daily the doubts about the old politics among the Millennial Generation: "Don't Ask, Don't Tell is a policy of the federal government, not just the Pentagon, and it was signed by President Clinton. But Harvard doesn't seem to have any trouble taking money from the federal government, and Clinton is certainly welcome any time he comes on campus. So why can't midshipmen and cadets who want to serve their country -- and didn't have anything to do with this policy -- be welcomed here, too?"

A Tortured History

The Reserve Officer Training Corps program was launched by Congress in 1862, and signed into law by Abraham Lincoln as part of the legislation setting up land grant colleges. It wasn't particularly controversial, even at Harvard, which actually has had a proud martial tradition for much of its existence.

In 1969, Harvard's ROTC program was the oldest in the nation. To this day, one of the college's most beloved buildings is Memorial Hall, where the name of every Harvard man who joined the Union in the Civil War and paid for that decision with his life is engraved in the building's walls. At Memorial Church in Harvard Yard, the names of other Harvard graduates who served and died in America's other wars are etched on the walls of the church. First among the casualties of World War II is Franklin Roosevelt, class of 1904, who died while serving as commander-in-chief of U.S. forces still fighting in the Pacific. That was on April 12, 1945. The next day, the church was packed and the words of Harvard Divinity School President Willard L. Sperry were broadcast to the overflow crowd standing silently in the Yard. But times change.

Twenty-five years later, in April 1969, radicals with Students for a Democratic Society congregated on campus for a different purpose: to close down Harvard College in protest over the Vietnam War. The demonstrators occupied University Hall, cut the phone lines, and issued their demands. Chief among them: rid Harvard of ROTC.

Similar demonstrations were taking place in those days at most of the elite schools in the country. By the time the tear gas had cleared, the faculty and administration at Harvard, Yale, Columbia, Brown, Stanford, and others had given into the radicals' demands. The training program for students who wanted to serve their nation as officers in the United States Army, Navy, Air Force, or Marine Corps was no long welcome at the nation's most selective institutions of higher education. This was the backlash to Vietnam, and to the military draft that furnished the troops for that unpopular war.

In time, there was a backlash to the backlash. It came to be known by a name, the Solomon Amendment, named after Gerald Solomon, a conservative Republican congressman and ex-Marine from upstate New York. This law empowered the Secretary of Defense to deny federal funds to any institution that prohibits military recruiters on its campuses. The colleges fought it in court. In the meantime, they adhered to the new law. Military recruiters were back on campuses. At Harvard Law School, the upshot was that uniformed recruiting officers could avail themselves of the Office of Career Services to set up interviews with students.

This is where Elena Kagan comes in. The details of Harvard's precise policies and ensuing litigation are involved and somewhat technical. (For starters, Harvard Law School doesn't actually receive federal dollars; in addition, the undergraduate college doesn't prohibit its students from being in ROTC – it just makes them travel across Cambridge to MIT to drill and take classes.) Nonetheless, in July of 2003, Kagan took over as dean of the law school, and she adhered to the "Solomon amendment" policies that were in place. She took pains, however, to assure students that she didn't like doing so because she considered "Don't Ask Don't Tell" an abomination, and the Solomon amendment an unconstitutional incursion into the First Amendment rights of those at the university.

In November 2004, the Third U.S. Circuit Court of Appeals sided with the universities and against the government. It was at this point that Dean Kagan booted the military recruiters from the law school's Office of Career Services. Those recruiters were later restored after the Pentagon successfully appealed to the U.S. Supreme Court, which unanimously upheld the validity of the statute.

"As a general matter, the Solomon Amendment regulates conduct, not speech," Chief Justice John G. Roberts Jr., wrote in a 21-page opinion signed by every voting justice on the court Kagan now wants to join. "It affects what law schools must do --afford equal access to military recruiters -- not what they may or may not say."

Lindsey Graham and other GOP senators on the Senate Judiciary Committee may make hay of the discrepancy between Kagan and the other justices, but there is another side to this issue – a couple of sides, really – that may cut in Kagan's favor.

First, as her defenders accurately point out, Kagan inherited all of Harvard's policies in institutional opposition to the military. "As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place," says Harvard law professor Robert C. Clark, who is something of a mentor to Kagan. He ought to know: He was the dean who preceded her, and who formulated those policies.

Professor Clark also directly challenges the notion that Kagan has any animus toward the military. "Outside observers may disagree with the moral and policy judgments made by those at Harvard Law School," Clark maintains. "But it would be very wrong to portray Elena Kagan as hostile to the U.S. military. Quite the opposite is true."

There is another defense of Kagan that Clark does not make. Aside from the specific policies regarding a military presence on campus, Elena Kagan and her cohorts inherited something else from legal scholars of Robert Clark's generation -- and it wasn't hostility to the military. Kagan was 9 years old when the SDS bullied Harvard's faculty and administration into abandoning ROTC. That is not her fight.

What is her fight – it's the fight of liberals of her age and place – is the inclusion of gays and lesbians in the civil rights mix. To Americans of this generation, gay rights is one of the last significant frontiers in this long struggle for equality. This is not a fig leaf, it is a core belief, whereas the fallout from Vietnam is a footnote in their personal histories.

Maybe this is a naïve view, and maybe when gays are fully and openly incorporated into the military, as they inevitably will be, the left-leaning elite universities will come up with some other excuse to erect hurdles to men and women in uniform. But if Robert C. Clark is sincere – and if he knows his protégé as well as he thinks he does -- Justice Kagan will be there to call them on it.
Filed Under: Supreme Court, Elena Kagan

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19 Comments

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acheapmom

Where are Ms. Kagan's moral boundaries...I.E.Where does her view of truth come from?

Harvard's motto contains the Latin word for Truth "Veritas".

But today Truth is - whatever profs, powerful activist groups, other cultural leaders ARBITRARILY want it to be. Truth has no anchor anymore; college students can be whipped into frenzied activism for some groups, yet ignore the poor and truly oppressed who have NO VOICE --that might live a few miles away. (When have you seen Days of Silence for -- single moms and their kids???)

And most indications seem to be - Ms. Kagan has a 1960's influenced view of truth. She's too young to be a 60s radical, but surely she had profs, other mentors out of the 60's era.

Truth will be whatever Ms. Kagan and four other Judges want it to be!

July 01 2010 at 11:30 PM Report abuse rate up rate down Reply
rsticks18

no problem--just no federal money for the school--that's all---------

June 29 2010 at 4:32 PM Report abuse +1 rate up rate down Reply
skruobma

The question here isn't wheather she was right or wrong. The Universities are well within their charter to eliminate any organization that does not share their same ideology. What is in play here is the Solomon ammendment which says these schools that do not allow ROTC and Military (even Coast Guard) access to students may not receive federal funding in the form of grants for reasearch etc... The Solomon ammendment also says if a male has not registered for Selective Service after age 18 he will not be elligible for federal funds for education. The Dean the preceeded Kagan at Harvard decided to allow the Military when he found out that Harvard University received $400 million per year from the federal government. Kagan made the same challenge and made the same digression. Turns out the money is more important than her views on equality. Hmmm.

June 29 2010 at 10:23 AM Report abuse +3 rate up rate down Reply
joe

Two questions I would ask Elena Kagan: If there was a major attack on the country would you rule in favor of a military draft to build up the armed forces??
If a draftee filed for an exemption based on the fact that the draftee was gay would you rule to grant that exemption? All of this article suggests that gays are just dying to join the military and that Elena Kagan supports their right to do so. I am not anti-gay but I feel that Kagan's use of the gay issue to ban military recruiting on campus is extremely poor judgement and disqualifies her from serving on the Supreme Court.

June 28 2010 at 3:33 PM Report abuse +13 rate up rate down Reply
1 reply to joe's comment
joe

gbluehen if congress passes a law and someone challenges the constitutionality of the law, who decides???? Now do you get the difference?

June 28 2010 at 6:45 PM Report abuse +9 rate up rate down Reply
joe

Just return to the Military draft and draft everyone including college students both male and female and gay and straight . That should end all the bickering. Then there will be no need for military recruiters on campus. It would also trigger a mass migration to Canada. Thank God for our brave volunteer military.

June 28 2010 at 3:18 PM Report abuse +15 rate up rate down Reply
joedenver60

When I returned from viet-nam, there were many who protested the war, and made allegations to me and patriots that we were baby killers. This was, I feel, the begining of liberals views, that were used to compensate their cowardness, to continue in school or avoid going, and blame the soldiers who were just doing there job, under extreme conditions. This kind of behavior is running amoke within the democratic party, and in many ways is hurting our secutity, morals and the spirit of captalism in our great country.......just saying

June 28 2010 at 12:59 PM Report abuse +11 rate up rate down Reply
2 replies to joedenver60's comment
theherd1969

Response To Eric's Post.

"Healthy anti-war and anti-military feelings go much farther back in our nation's history than merely the Vietnam protests." ----- Trust me, there was nothing "healthy" watching AMERICANS who protested that war proudly displaying portraits of Ho Chi Minh and the flags of North Vietnam and the Viet Cong on AMERICAN SOIL while I, along with thousands of other AMERICAN servicemen were fighting in Vietnam? I don't care how you spin it, those were not "healthy" anti-war demonstrations -- they were tresonous PRO-Viet Cong/North Vietnam demonstrations!

June 28 2010 at 4:02 PM Report abuse +13 rate up rate down Reply
namingway2

No. That was the misguided belief that soldiers were complicit in maintaining the Vietnam war. The idea was that if soldier refused to fight that there would be no war. Naive and wrong. I wasn't around then, but if I were to see them I would reject their vitriol wholeheartedly. Liberalism isn't pro-war or antiwar. Liberalism is pro-individualism, whether you're looking at enfranchisement of minorities or the open permissiveness of libertarianism.

You might notice that there was no repeat of our treatment of Iraqi veterans as what happened to Vietnam vets. This is because liberals like myself today recognize the gross injustice of turning soldiers doing their job and following the law into scapegoats. Hold politicians accountable. Dissent. But do not condemn your fellow citizen for doing what they think is right.

June 28 2010 at 8:09 PM Report abuse -3 rate up rate down Reply
militarytown

The title of this post is misleading because at no point does Mr. Cannon claim that Elena Kagan was "Right to Boot the Military Recruiters from Harvard Law." He merely claims that she was entitled to do so.

That said, she was in fact WRONG to do so and should not be allowed to serve on the Supreme Court as a result. There was nothing but her personal animosity towards the military on display when she kicked the military recruiters out of the Career Services Office. She knew darn good and well that the Government was going to appeal the Third Circuit's ruling and there was nothing in that ruling or Harvard's rules that said she had to kick the recruiters out. She did so because she wanted to do so.

The fig leaf she is really hiding behind is the Third Circuit's ruling and the fact that it was so off base that the U.S. Supreme Court UNANIMOUSLY OVERRULED IT does not speak well of her knowledge of this country or its Constitution and laws.

Due to her clear elitist animosity towards the U.S. military she is not fit to serve on any court, much less the nation's highest court.

June 28 2010 at 2:25 AM Report abuse +24 rate up rate down Reply

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